Discrimination Against the Disabled? Not on CMS’s Watch

Concerned aged woman

Today I have two small things and then a really big thing to cover. First up, LinCare, a home oxygen supplier, was fined $29 million for improper billing of Medicare for home oxygen equipment. Medicare has a really complicated way of paying for certain durable medical equipment (DME). In the case of oxygen equipment like concentrators, Medicare pays a monthly rental payment to the supplier for 36 months, after which the patient gets to keep the equipment at no charge for as long as it continues to work and they continue to require it. The oxygen supplier can continue to charge Medicare for supplies like tubing.

In this case, it appears that LinCare did not stop billing at three years and continued to collect rental payments from not only Medicare, but also Medicare Advantage (MA) plans. Now, I know LinCare should not have done this, but how hard would it have been for the Medicare Administrative Contractors (MACs) and MA plans to program their systems to produce an alert when 36 rental payments are made? How about a little shared responsibility here? Oh, and by the way, this was a whistleblower case, and two people just made $2.8 million each.

Moving on, I have talked about Leqembi, the new medication for Alzheimer’s disease, in several past articles. Well, UnitedHealth Care (UHC) just released their coverage guidelines for the medication. Now, of course, for their Medicare Advantage patients, their coverage mirrors the CMS requirements as required by law, but they also adopted the same requirements for their commercial patients. That is actually a bit surprising, as they are free to perform their own efficacy analysis (which was not terribly convincing to many physicians), and to consider the cost-effectiveness of the medication, a factor that Medicare is not allowed to consider. The only tricky part is that UHC requires that the patient prescribing the medication be either a neurologist, a geriatric psychiatrist, or a geriatrician who specializes in treating dementia. That could certainly limit access in many areas of the country.

Next up, with very little attention paid to it, last week the Centers for Medicare & Medicaid Services (CMS) released a 400-page proposed rule titled Discrimination on the Basis of Disability in Health and Human Service Programs or Activities. Despite its quiet release, I think this is going to result in a lot of change in hospitals and medical care in general.

In the 400 pages of detailed discussion, they are proposing to require access for disabled individuals to all electronic services available to others, including check-in kiosks, websites, and mobile apps. They specifically call out Epic’s patient-facing services, noting that if a hospital uses MyChart to allow their patients access to their medication lists, test results and so on, the hospital is responsible for ensuring that the content is accessible to disabled persons. It is interesting that CMS places the obligation on the provider and not the developer of the app. There was also extensive discussion about the accessibility of content posted on a provider’s websites and social media sites.

Next, CMS talks about medical equipment, noting that it will set specific standards on the types and numbers of equipment that each facility must have that are accessible, from beds to X-ray machines to scales. They go into great detail here about the number of accessible rooms that each type of facility will be required to have, depending on the services offered at the facility, and the location of accessible equipment if the facility has more than one device that is accessible – noting, as an example, “a hospital that is required to have five accessible X-ray machines cannot place all the accessible X-ray machines in the orthopedics department and none in the emergency department.”

While much of this rule talks about physical and electronic factors such as these, there is substantial discussion at the beginning of the rule about the medical care that is and is not provided to patients based on their disabilities. For example, CMS points out that during COVID, the Sequential Organ Failure Assessment (SOFA) score was often used to measure disease severity and make clinical decisions. Well, the SOFA score uses the Glasgow Coma Score, so a patient with a disability like autism would be scored lower because of their inherent difficulty with communication – not from COVID, but from autism, which could result in inappropriately withholding care. They also discuss the tendency of medical providers to project their own values and perceptions of quality of life on patients when discussing resuscitation status, referring to cases that were publicized in the media. They do clarify quite clearly that they are not removing physician judgment about medical care; for instance, if a surgeon felt that a patient’s disability was such that it would make them unlikely to survive surgery, they are not compelled to perform that surgery. As CMS states, decisions “based on individualized, fact-specific inquiries, are legitimate nondiscriminatory reasons for denying or limiting treatment and remain within the appropriate province of medical judgment.”

I expect that every hospital and health system’s legal and compliance teams will be carefully scrutinizing this proposed rule and hopefully providing comments to CMS, and then once it is finalized, working to ensure that all patients have equal access to care.

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